[This essay, on the beginnings of the Jose Padilla case, originally appeared in the Hartford Courant on June 20, 2002. Over the next several days I will be republishing some op-eds and pieces I wrote in the first year after 9/11 on civil liberties issues.

It is worth remembering the extreme claims of power that led to Padilla's original imprisonment. Before the Hamdi decision, the Bush Administration took the view that it could seize anyone, anywhere-- including U.S. citizens-- that it claimed was associated with terrorism and hold that person indefinitely without any rights. Furthermore, it claimed that the President's designation that a person was an enemy of the state was unreviewable by the courts, or at the very least should be upheld if there was *any* evidence supporting it, including, for example, a self-serving affidavit from an executive branch official.

Five years later, Padilla is still in prison without ever having been convicted of any crime, and, if reports are to believed, has become unhinged from the treatment he received at the hands of his own government.

It has often been said that it can't happen here. But it already has happened. And it is still happening.

Five years after 9/11, we should remember the road we have traveled.]

* * * * * * *

by Jack M. Balkin

NEW HAVEN -- Jose Padilla, an American citizen, is now being held in a military prison in South Carolina. He can't speak to counsel. He has no rights that the Bush administration wishes to respect. Padilla's case is further evidence that there is something deeply troubling about this government's attitude toward the Constitution and the rule of law.

For months, critics have worried about the administration's proposal to employ military tribunals. But the greater danger to civil liberties has always been lurking alongside. It is not secret trial but indefinite detention: the danger that the attorney general or some other government functionary will pick some face out of the crowd and hold that person indefinitely without legal remedy.

The administration justifies its action on the ground that Padilla, who has converted to Islam and now calls himself Abdullah al Muhajir, is an unlawful combatant: someone who is secretly fighting against our country without wearing a uniform or announcing his belligerent status. If news reports are to be believed, Padilla is no choirboy. But in our system of justice, even violent criminals are accorded basic rights against the federal government: the right to have accusations against them placed before a grand jury, the right to the advice and assistance of counsel, the right to a speedy and public trial by a jury of their peers and, above all, the right to judicial review of the legality of their arrest, detention and trial. By accusing Jose Padilla of conspiring with the al Qaeda terrorist network, the administration has attempted to short-circuit all of these guarantees.

There is no doubt that identified enemy soldiers may be arrested and detained by the military, although even then they are subject to the protections afforded by international law to prisoners of war. The question to be decided, however, is whether Jose Padilla is an enemy soldier. One should not be able to strip away his constitutional rights merely by throwing him in the brig. If the attorney general can simply announce that a citizen is an enemy of the state and use that accusation to hold him indefinitely, our Constitution is not worth the paper it is written on.

Repeatedly, this administration has taken whatever steps it can to avoid accountability, either to Congress or to the courts. It justifies its actions not by giving us freedom from fear but by spreading fear. It raises the specter of grave dangers to our national security, from which it will save us if only we submit ourselves willingly to its greater wisdom.

We have a right to be worried about future attacks. But we also have the right to be worried about the slow and steady evisceration of legal procedures designed to prevent governments from arbitrary detention and arrest.

At first, one could argue that the Bush administration was interested only in seeking rough justice overseas. Then one could comfort oneself with the notion that only aliens overstaying their visas would be targeted. But now it appears that even American citizens may be rounded up on suspicion and placed in military prisons indefinitely at the pleasure of the president.

There is only one word to describe this, and it is not democracy. It is authoritarianism.

"Five years later, Padilla is still in prison without ever having been convicted of any crime"Since the second day after his transfer to military custody, his case has been in continuous litigation before the courts. So what is the point? That POWs should be released unless they are also criminals? That Padilla should have been given bail? That the US courts are intolerably slow?

"if reports are to believed, has become unhinged"If reports are to believed, Padilla was a soldier in the armed forces associated with Al Qaeda who volunteered to come to the US and kill thousands of people. He was captured while on a mission to blow up apartment buildings. Abu Zubaida considered him the crazy American Al Qaeda who wanted to blow up a dirty bomb. So based on reports, he started out unhinged and has not improved during his imprisonment. The other Al Qaeda US operative was Zacarias Moussaui, and everyone agrees he was crazy long before the FBI arrested him.

Of course, you have to be a bit unhinged yourself to believe anything that the defense or prosecution says to the public about a case.

"If reports are to believed, Padilla was a soldier in the armed forces associated with Al Qaeda who volunteered to come to the US and kill thousands of people. He was captured while on a mission to blow up apartment buildings. Abu Zubaida considered him the crazy American Al Qaeda who wanted to blow up a dirty bomb. So based on reports, he started out unhinged and has not improved during his imprisonment. The other Al Qaeda US operative was Zacarias Moussaui, and everyone agrees he was crazy long before the FBI arrested him."

As you know the governement stopped arguing this. It didn't include one reference to this whole story in it's criminal prosecution.

You ask about the point? The point is the administration has not ruled out detaining Padilla again if he would be acquited. The administration's intent is not to try him, but to keep him. His 5 years in prison can be considered as one, for the administration does.

"It didn't include one reference to this whole story in it's criminal prosecution." He is being prosecuted for activity prior to his enlistment in Al Qaeda. Obviously, something that happened later in a different country cannot be introduced to prove guilt of a crime. "He robbed a bank in Cleveland three years later, therefore he is more likely to be guilty of stealing a car in Detroit three years earlier." Just because the government is not introducing irrelevant and prejudicial evidence in the current case doesn't mean the facts have changed.

Since the second day after his transfer to military custody, his case has been in continuous litigation before the courts. So what is the point? That POWs should be released unless they are also criminals? That Padilla should have been given bail? That the US courts are intolerably slow?

This is as disingenuous as it gets. The case was in "continuous litigation" because the Administration refused to charge Padilla. He spent 5 f***ing years waiting to be charged with some crime, any crime. Then, the Administration charged him in a move so dishonest that Michael Luttig, one of the most conservative appellate judges on the bench, ripped the Administration a new one for its behavior.

And by the way, the issue here is NOT whether POWs should be released, it's whether Padilla is a POW.

He is being prosecuted for activity prior to his enlistment in Al Qaeda. Obviously, something that happened later in a different country cannot be introduced to prove guilt of a crime. "He robbed a bank in Cleveland three years later, therefore he is more likely to be guilty of stealing a car in Detroit three years earlier." Just because the government is not introducing irrelevant and prejudicial evidence in the current case doesn't mean the facts have changed.

Still disingenuous. The government has the power to charge him with the earlier behavior. It just didn't, thereby leaving us with little doubt that the earlier accusations are false or unprovable.

Yes, I'll say it's "troublesome." The Supreme Court has never set a precise number of days that due process permits someone may be held without charges, but surely the outside limit is no more than several days. Bush's treatment of Padilla constitutes a far worse crime than anything Padilla did (if Padilla committed any crime at all), and Bush ought to hope the next president does not subject him to the "justice" to which he has subjected Padilla.

I like humblelawstudent: unlike some others he is not afraid to have reservations about the intrusion on civil liberties. Others, like our friend Howard, just attack.

If Padilla hadn't sued, he'd still be in detention. If you recall, the only argument the administration has used all this time was that Padilla had no right to sue. So you can't use continuous litigation as a sign of civil rights.

Hamdan is set on a course like Padilla's after the DC court ruling, although so many parts of that appeal were unaddressed by the opinion issued, as if the judge sidestepped to let the titan congress revisit MCA if it has the will, while Hamdan's counsel ponders the likelihood of obtaining more explicit delineations from titan supreme court of subtopics Scotus mentioned only tersely last June, together with the vast flawed texture which Scotus might explore in MCA itself. I remain uncertain, this week, how complacent congress might attempt to remain in the aftermath of a senator's critical illness. I would expect Scotus to opine expansively, given the mood change in our societal milieu which has clarified since the government lost the Hamdan argument at the supreme court in summer.

"The question to be decided, however, is whether Jose Padilla is an enemy soldier."It is not a crime to be an enemy soldier. A citizen who joins an enemy army might be guilty of treason, except that joining an enemy army strips you of citizenship, and a non-citizen cannot be a traitor. Enemy soldiers can be held without charge, so all the complaints that Padilla was held for 3.5 years in military custody "without charge" are redundant. POWs are always held without charge, unless they are war criminals. There has always been only one question, is Padilla an enemy soldier. If he is, then his detention was proper.

That is where the continuous litigation comes in. For the entire period the US courts argued how Padilla could challenge his detention. The last decision (which was not right just because it was last) was the 4th Circuit decision that he was an enemy combatant and was properly detained. Then he was released from military custody.

For the last year he has been held on a civilian criminal charge without bail. Well, if the defense motion is accepted, he may spend some time in a mental institution and still not be convicted. So next year we come back and argue he is six years in custody (military, civilian, mental) without trial or conviction. And all the blame will be put on the government, although it was his own council who originally filed in the wrong jurisdiction, then agreed to his transfer to civilian custody, and now moves to declare him unfit for trial.

If you are upset about the delay, blame the courts. Padilla has a right to challenge his detention. The government has a right to try and prove he was an enemy combatant (the military custody question) and that before he enlisted in Al Qaeda he supported terrorism (the criminal charges). The American judicial system was completely in charge of the schedule. If you think it takes too long to answer questions like that, blame the courts and the legal procedures.

Yes the government has argued some trash, and recently the defense has argued its own large pile of nonsense. Five years have been spent with each side arguing whatever is most advantageous. The government argues that he can't sue, and his lawyers argue that his detention was illegal even if he was Al Qaeda and planned to kill thousands of people (because of how he was captured).

You can't really blame anyone because that is how the game is played. Fox News may go on a rant because his lawyers want to release a terrorist, and this blog may go on a rant because the Government argued and lost some preliminary legal positions. That is all smoke and mirrors. We get back to the original question, "whether Jose Padilla is an enemy soldier". The answer after 5 years was tentatively yes (4th Circuit) but not definitively (no SCOTUS), and we don't care any more because there is a new criminal charge, only we can't answer that question either.

The government has, at every moment in time since Padilla's arrest, had the opportunity to charge Padilla with a crime. Instead of doing so, it spent 5 years refusing to charge him, while insisting (1) that he could be held indefinitely without charge as an enemy combatant, but (2) was not entitled to be treated as a POW. This was not a matter of "the courts" arguing about his status, this was a matter of the government's actions.

Then, after the 4th Circuit ruled that Padilla could be held indefinitely without charge, the government changed its mind and announced that it would charge him. The government did this for the obvious reason of preventing the Supreme Court from hearing Padilla's case -- the government argued that the issue raised was moot now moot. This staggeringly dishonest conduct infuriated even the 4th Circuit, where the court which had just ruled in its favor made it clear that the government's conduct was dishonest.

Then, the government proceeded to file charges which had nothing to do with the sensationalist claims made against Padilla in the press by the Attorney General (that Padilla planned to set off a "dirty bomb" in a US city). The indictment further made no mention whatsoever of Al Qaeda, which is pretty much essential if he is to be treated as an enemy combatant under the AUMF of September 12, 2001. Thus, the indictment undercut the entire basis of the government's insistence that it could hold Padilla indefinitely without charge.

In light of these facts, it is clear that:

1. The Administration is responsible for the delays, not Padilla and not the courts.

2. The Administration is NOT trying to prove that Padilla was an enemy combatant, even though that was the only possible basis to hold him without charge (and even that power is limited in ways unnecessary to treat here).

"The government did this for the obvious reason of preventing the Supreme Court from hearing Padilla's case"The government had won its last case and had a very good argument. However, a US Attorney in Miami got an incitement against a group of people including Padilla. You advance in the DOJ by getting convictions, especially against well known defendants. Only they didn't actually have custody of the prisoner.

In our system, the DOJ was responsible for arguing in court that the military should be allowed to keep custody of a prisoner they now wanted released. They negotiated with Padilla's lawyers to transfer him to criminal court, then AG went to George and got him to sign an order releasing Padilla from military custody.

Was anyone allowed to argue against this decision? Did they even consult a JAG to ask how this should be done properly? There is no evidence they bothered, because Padilla was released without signing away his combatant immunity (from criminal prosecution for any future acts as long as the war lasts) which he now has both by Presidential declaration and by a decision of the 4th Circuit.

All I see here is bureaucratic incompetence. The DOJ maximized its own institutional advantage by proceeding with a high profile case. Padilla got to skip indefinite military confinement and go directly to a criminal trial that would have been waiting for him eventually anyway. All the American people got is an unstable terrorist who wants to kill thousands of people by blowing up buildings, and who, if found innocent or released, will be legally immune to civilian criminal prosecution from the point of his release until the end of the war.

You think that this was engineered to avoid a Supreme Court decision that the government might have won, and had they lost would simply have led to the current criminal case. It would have set a precedent, except that the only person on earth to which the precedent would have applied is al Marri, and his case may still go to SCOTUS. You give the government far too much credit by suggesting that they even thought this thing out. "Never attribute to conspiracy that which can be equally well explained by the gross incompetence of the Bush Administration."

No, it had surefire loser of an argument and was desperate to avoid the loss.

All I see here is bureaucratic incompetence.

The 4th Circuit saw it as dishonest and said so. So did everyone who's not just shilling for the Administration. It's not just the "switch in time", it's the nature of the charges finally brought (see my post above).

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